Citation Nr: 0602090
Decision Date: 01/25/06 Archive Date: 01/31/06
DOCKET NO. 04-05 456 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for service connection for post-traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: New York State Division of
Veterans' Affairs
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
P. Olson, Associate Counsel
INTRODUCTION
The veteran had active military service from December 1967 to
October 1970.
This matter comes before the Board of Veterans' Appeals
(Board or BVA) on appeal from a June 2002 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in New York, New York.
In November 2005, the veteran testified at a travel board
hearing before the undersigned Veterans Law Judge. A
transcript of that hearing is of record. At that hearing,
the veteran submitted additional evidence directly to the
Board accompanied by a signed written waiver of the RO's
initial consideration of this additional evidence.
The additional evidence noted above included two statements
from social workers; one who noted that the veteran was
unemployed due to his PTSD, and one who noted that the
veteran was unemployed due to his psychiatric conditions
which include PTSD, major depressive disorder, and anxiety
disorder. As it is unclear whether the veteran wishes to
make a claim for TDIU benefits, this matter is REFERRED to
the RO for appropriate action.
The issue of service connection for PTSD is addressed in the
REMAND portion of the decision below and is REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDINGS OF FACT
1. A claim for service connection for PTSD was denied by the
RO in July 1993; the decision was not appealed.
2. Evidence submitted subsequent to the July 1993 decision
is not cumulative of evidence previously of record, bears
directly and substantially on the matter under consideration,
and is so significant that it must be considered to fairly
decide the merits of the claim.
CONCLUSIONS OF LAW
1. The July 1993 decision which denied a claim for service
connection for PTSD is final. 38 U.S.C.A. § 7105(c); 38
C.F.R. §§ 3.104, 20.302, 20.1103 (1993).
2. New and material evidence has been submitted, and the
claim of entitlement to service connection for PTSD is
reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §
3.156(a) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has thoroughly reviewed all the evidence in the
veteran's claims folder(s). Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
extensive evidence submitted by the veteran or on his behalf.
See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)
(the Board must review the entire record, but does not have
to discuss each piece of evidence). The analysis below
focuses on the most salient and relevant evidence and on what
this evidence shows, or fails to show, on the claim(s). The
veteran must not assume that the Board has overlooked pieces
of evidence that are not explicitly discussed herein. See
Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law
requires only that the Board address its reasons for
rejecting evidence favorable to the veteran).
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A.
§§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp.
2005)), imposes obligations on VA in terms of its duties to
notify and assist claimants. Initially, the Board observes
that in light of the favorable outcome of this appeal with
respect to the issue of whether new and material evidence has
been submitted to reopen the claim, any perceived lack of
notice or development under the VCAA should not be considered
prejudicial. To that end, the Board notes that it is
expected that when the claim is returned to the RO for
further development and reviewed on the basis of the
additional evidence, the RO will properly conduct all
necessary VCAA notice and development in accordance with its
review of the underlying claim.
The law provides that if new and material evidence is
presented or secured with respect to a claim that has been
finally disallowed, the claim shall be reopened and reviewed.
38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2001).
When a veteran seeks to reopen a final decision, the first
inquiry is whether the evidence presented or secured since
the last final disallowance of the claim is "new and
material."
The Board notes that there has been a regulatory change with
respect to the definition of new and material evidence, which
applies prospectively to all claims made on or after August
29, 2001. 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001)
(codified at 38 C.F.R. § 3.156(a) (2005)). As the veteran
filed his claim prior to this date, the earlier version of
the law remains applicable in this case.
Under 38 C.F.R. § 3.156(a) (2001), new and material evidence
is defined as evidence not previously submitted which bears
directly and substantially upon the specific matter under
consideration, which is neither cumulative nor redundant, and
which by itself or in connection with the evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. See 38
C.F.R. § 3.156(a) (2001); see also Hodge v. West, 155 F.3d
1356 (Fed. Cir. 1998). When determining whether the claim
should be reopened, the credibility of the newly submitted
evidence is presumed. Justus v. Principi, 3 Vet. App. 510,
512-13 (1992). In order for evidence to be sufficient to
reopen a previously disallowed claim, it must be both new and
material.
If it is determined that new and material evidence has been
submitted, the claim must be reopened.
The Board notes that by a June 2003 rating decision, the RO
adjudicated the veteran's claim for service connection for
PTSD on the merits. On appeal, the Board must make its own
determination as to whether any newly submitted evidence
warrants reopening the claim. This is important because the
preliminary question of whether a previously denied claim
should be reopened is a jurisdictional matter that must be
addressed before the Board may consider the underlying claim
on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383
(Fed. Cir. 1996).
At the time of the July 1993 decision, the evidence of record
consisted of the veteran's DD Form 214 and a statement from
the veteran's spouse. The evidence submitted since the July
1993 decision includes a letter from NPRC verifying
entitlement to National Defense Service Medal, Vietnam
Service Medal with 2 bronze service starts, Republic of
Vietnam Campaign Ribbon w/Device (1960), and Expert Badge
with Rifle Bar; the veteran's service medical records and
personnel records; a January 2004 stressor statement; VA
treatment records from November 2002 to March 2004 indicating
diagnosis of PTSD; Social Security Disability records;
statements from three VA mental health workers indicating
that the veteran suffers from PTSD due to combat experiences
and that he is unemployable due to his psychiatric conditions
which include PTSD; a January 2002 VA examination; and the
veteran's statements including testimony presented at a
November 2005 travel board hearing.
The evidence received since the July 1993 decision was not
previously of record, and it bears directly and substantially
upon the specific matter under consideration. There is now
medical evidence diagnosing PTSD, as well as some alleged
stressors from the veteran. It is so significant that it
must be considered in order to fairly decide the merits of
the claim. 38 C.F.R. § 3.156 (2001). Accordingly, the
veteran's claim of entitlement to service connection for PTSD
is reopened.
ORDER
As new and material evidence has been received to reopen the
claim for service connection for PTSD, the claim is reopened,
and, to that extent only, the appeal is granted.
REMAND
Although the Board sincerely regrets the additional delay, it
is necessary to remand the claim to ensure that the veteran
has been afforded every possible consideration. The claim for
service connection for PTSD is remanded to ensure full and
complete compliance with the duty-to-assist provisions
enacted by VCAA.
The veteran contends that he suffers from PTSD as a result of
stressful incidents in service.
The basis of the RO's denial of the claim for service
connection for PTSD was, at least in part, the lack of any
evidence corroborating the alleged stressor and the lack of
specific information from the veteran that would allow his
stressor to be corroborated.
At the November 2005 travel board hearing, the veteran
testified that his main base in Vietnam was in Plei Ku, that
he was with the 293rd company of combat engineers, that his
unit was frequently subjected to incoming mortar rounds and
that people he knew were killed by incoming fire, that one
such incident occurred around the time that a falling box
injured his foot and that he witnessed a friendly fire
incident in which a fellow soldier, by the last name of
Lastic or Lastix, was killed toward the end of the veteran's
tour. The veteran's personnel records show that between
August 15, 1970 and October 13, 1970, the veteran was a
combat engineer with Company D 20th Engineer Battalion (Cbt)
in Vietnam. The veteran's service medical records indicate
that he injured his foot on August 27, 1970 when he dropped a
cement form on top of right foot. An attempt should be made
to verify the above claimed stressful incidents.
In addition, the veteran routinely receives treatment at a VA
facility; therefore, it is the Board's opinion that the RO
should take this opportunity to obtain the most recent VA
records. VA records are considered part of the record on
appeal since they are within VA's constructive possession.
Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
Accordingly, the case is hereby REMANDED for the following
actions:
1. Obtain the veteran's medical records
from the Brooklyn HHS for treatment for
PTSD from April 2004 to the present.
Continue to request these VA records,
either until the records are obtained or
it is reasonably certain that the records
do not exist or that further efforts to
obtain the records would be futile. All
efforts to obtain VA records should be
fully documented, and the VA facility
must provide a negative response if
records are not available.
2. Ask the veteran to submit any
evidence in his possession relevant to
this claim.
3. Contact the U.S. Army and Joint
Services Records Research Center
(JSRRC) and ask them to provide the
veteran's unit records for January to
March 1970 and from August to October
1970 and provide any available
information that might corroborate the
veteran's alleged in-service stressors,
such as the death of an individual with a
last name such as Lastic or Lastix in
September or October 1970. The veteran's
personnel records show that between
August 15, 1970 and October 13, 1970, he
was a combat engineer with Company D 20th
Engineer Battalion (Cbt) in Vietnam.
4. The case should be reviewed on the
basis of the additional evidence. If the
benefit sought is not granted in full,
the veteran should be furnished a
Supplemental Statement of the Case, and
be afforded a reasonable opportunity to
respond before the record is returned to
the Board for further review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
Michelle L. Kane
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs